Comment

The Committee encountered significant problems created by the Texas Penal Code’s provisions for culpable mental states.

Penal Code Section 6.02. When an offense requires a culpable mental state, as most do, a full definition of the offense requires deciding to which of the nonmental elements that culpable mental state applies. Determining this is a particularly difficult matter under Texas law.

The 1974 Texas Penal Code adopted a modified version of the approach of the American Law Institute’s Model Penal Code. Like the Model Penal Code, the Texas Code undertook to define with increased specificity the mental states required for crimes. It also adopted the Model Penal Code’s approach of distinguishing four levels of culpable mental state. These levels of culpable mental state—intent, knowledge, recklessness, and negligence—were defined in section 6.03. See Tex. Penal Code § 6.03.

Texas courts have categorized the nonmental elements of offenses into three types: (1) the nature of the conduct, (2) the result of the conduct, and (3) the circumstances surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). All offenses require some element of type 1. Some require elements of one or both of types 2 and 3.

But to which elements, or which types of elements in a particular crime, does a required culpable mental state apply?

The problem is illustrated by unauthorized use of a vehicle as defined in Tex. Penal Code § 31.07(a). This crime explicitly requires that the accused acted “intentionally or knowingly.” The statutory language does not, however, make clear whether this applies to only the conduct (requiring that the accused intentionally or knowingly operated a vehicle) or whether it alternatively or also applies to lack of owner consent (requiring that the accused intended that the owner not consent or knew that the owner did not consent).

In Tex. Penal Code § 6.02, the Texas legislature provided general rules for construing criminal statutes’ culpability requirements. But these rules differ from the analogous provisions in the Model Penal Code.

As a general matter, the Texas legislature chose to rely less than does the Model Penal Code on general principles such as those in section 6.02. Instead, it tried to provide, in the definitions of particular crimes, the culpable mental states required for those crimes. Nevertheless, as section 31.07(a) illustrates, the legislature’s provisions fail to make completely clear what is required for some offenses. A rule for construing the legislature’s terminology is clearly needed.

The Model Penal Code adopted what is often called an “elemental” approach. This approach assumes that a crime requires a culpable mental state regarding each nonmental element of the crime—each unit of conduct by the accused that must be proved, each result that the accused must have caused, and each circumstance that must have existed. Section 2.02(4) of the Model Penal Code implemented this with a constructional rule stating that required culpability “shall apply to all the material elements of the offense, unless a contrary [legislative] purpose plainly appears.”

The general principles of section 6.02 of the Texas Penal Code do not explicitly reject the Model Penal Code’s approach. The Model Penal Code’s constructional rule that implemented the Model Penal Code’s elemental approach was not incorporated into the Texas Penal Code. The Texas legislature, however, provided no alternative constructional rule.

Determining to Which Elements “Culpable Mental State” Applies. The basic problem the Committee encountered with Tex. Penal Code § 6.02 is that it provides no guidance for determining, when a crime requires a culpable mental state, to which elements of that crime the culpable mental state applies. The history of section 6.02 suggests that the Model Penal Code’s approach—a rigorous “elemental” approach applying the culpable mental state to each substantive element of the crime—was not intended by the legislature. But neither the history nor the terms of the statute provide a substitute.

The problem arises with the many crimes that explicitly require a culpable mental state, such as unauthorized use of a vehicle, as discussed above. Case law has addressed some specific offenses. The courts’ discussions, however, fail to provide a principled approach that can be consistently applied to all or most crimes.

The court in McQueen, for example, held that the culpable mental state for unauthorized use of a vehicle applies to the circumstance element (the lack of owner consent) as well as the nature-of-conduct element (operating a vehicle). Why this is the case is not entirely clear. The discussion did suggest the court reached this result because “what separates lawful operation of another’s motor vehicle from unauthorized use is the actor’s knowledge of a ‘crucial circumstance surrounding the conduct’—that such operation is done without the effective consent of the owner.” McQueen, 781 S.W.2d at 604 (quoting McClain v. State, 687 S.W.2d 350, 354 (Tex. Crim. App. 1985)).

This statutory construction problem also arises with crimes for which a culpable mental state of at least recklessness is required by section 6.02. Section 6.02 makes clear that a culpable mental state is required and that what is required is recklessness (see Tex. Penal Code § 6.02(b)(c)), but section 6.02 does not go beyond this and address to which elements of the crime recklessness applies.

A required culpable mental state, McQueen suggests, applies to those elements that separate lawful conduct from criminal conduct. Whatever the merits of such an approach, it has not been recognized by the Texas courts as the generally appropriate analysis under Texas law.

In Huffman v. State, 267 S.W.3d 902, 905 (Tex. Crim. App. 2008), the court of criminal appeals suggested that in analyzing offenses it will look first to which element or elements—including conduct, results, and circumstances—are the “focus” or “gravamen” of the offense. A required culpable mental state is then likely to apply to those elements. Huffman did not, however, make clear how the court will determine which element or combination of elements is the focus or gravamen of a particular crime.

Current Jury Instruction Practice. Current practice, the Committee concluded, too often ignores and even obscures the problem. Jury instructions are drafted in the statutory terminology, which simply passes the uncertainty of present law along to juries. Juries are essentially instructed in the language of the statute defining the crime and then given what the trial court regards as the applicable portions of the definitions in Tex. Penal Code § 6.03.

The appellate courts have addressed jury instruction issues primarily in response to contentions that the instructions improperly included inapplicable parts of section 6.03’s definitions.

A leading case, Alvarado v. State, 704 S.W.2d 36 (Tex. Crim. App. 1985), illustrates the analysis used in the case law and the Committee’s concern. Alvarado was prosecuted under a statute providing that a person commits an offense “if he intentionally [or] knowingly . . . engages in conduct that causes serious bodily injury . . . to a child.” The culpable mental state (intent or knowledge), the court held, applied to the result, causing serious bodily injury to a child, rather than to the conduct (any “conduct”). Alvarado, 704 S.W.2d at 37 (quoting Tex. Penal Code § 22.04).

Under existing practice, Alvarado’s holding is not followed by explicitly telling a jury that it must find the state has proved the defendant intended to cause serious bodily injury to the child or knew her actions were reasonably certain to cause that result. Rather, the holding is treated as simply requiring that the jury be given only those parts of the abstract statutory definitions of the mental states involved—intent and knowledge—that apply the mental states to result elements.

A jury is expected to recognize that the culpable mental state applies to the result element—and proof is required that the defendant intended the injury or knew it would occur—from the fact that it is given only the definitions of “intentionally” and “knowingly” as those terms are applied to result elements.

The Alvarado trial court, then, was not held to have erred because it failed to translate the culpable mental state requirement of the charged offense into specific but accurate terms for the jury. Rather, it erred only because it instructed the jury regarding the definitions of “intentionally” and “knowingly” as applied to conduct elements as well as the definitions as applied to result elements.

Existing case law does not explicitly require trial judges to eschew jury instruction containing specific statements of what culpable mental state the law requires. It does, however, make clear that by following current practice a trial judge minimizes the risk of being found to have erred. Because of the uncertainty in the substantive law concerning exactly what culpable mental states are required, a trial judge who abandons the current approach and drafts specific instructions runs a considerable risk of being wrong regarding what the appellate courts will find the Penal Code requires.

Even error in failing to properly draft the instructions under this current approach frequently triggers no appellate reversal given the doctrine of harmless error. Inclusions of unnecessary portions of section 6.03’s definitions are often held harmless. E.g., Hill v. State, 265 S.W.3d 539 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (in compelling prostitution case, trial court erred in failing “to tailor the definition of ‘knowingly’ to result of conduct,” but error was harmless).

Under current practice, drafting and review of jury instructions is focused on whether the abstract portion of the instructions contains the appropriate portions of section 6.03’s definitions and only the appropriate portions of them. Little or no attention is paid to crafting instructions that specify how those abstract definitions apply to the statutory elements of the crime as narrowed by the allegations in the charging instrument.

Trial judges, to avoid appellate reversal, too often do not need to confront and resolve the sometimes difficult questions about what culpable mental states a crime requires. As a result, jury instructions too often do not reflect a clear and complete explanation of what the charged offense requires.

In part as a consequence, discussion and litigation often ignore the underlying difficulty noted earlier. Neither the Penal Code nor the case law provide a clear criterion for resolving the substantive law issues posed by Alvarado and similar cases: To which elements of a crime did the legislature intend a required culpable mental state to apply?

Problems Created by Section 6.03’s Specific Definitions. A related problem the Committee encountered is created by Tex. Penal Code § 6.03, which contains definitions of the terms used in prescribing culpable mental states: intentionally, knowingly, recklessly, and with criminal negligence.

Tex. Penal Code § 6.03(b) provides definitions of knowingly for application of this term to elements consisting of the nature of the prohibited conduct, results of that conduct, and circumstances. Tex. Penal Code § 6.03(a) provides definitions of intentionally, however, for application only to elements consisting of the nature of the prohibited conduct and results of that conduct. Tex. Penal Code § 6.03(c)(d) provides definitions of recklessly and with criminal negligence for application only to elements consisting of the result of conduct and circumstances.

Does this mean that the legislature intended no construction of any criminal statute that would involve applying a culpable mental state in a way for which section 6.03 provided no definition? This would mean, for example, that a crime specifying that the accused must be proved to have acted recklessly could not be construed as to require recklessness to apply to an element describing the nature of the prohibited conduct.

For example, the offense of possession of marijuana is statutorily required to have been committed intentionally or knowingly. One element of the offense is a circumstance—the substance possessed must be marijuana. The approach outlined above would mean the culpable mental state could not be construed as applicable to that circumstance element, as section 6.03(a) provides no definition of intentionally as it applies to a circumstance element.

Committee’s Approach. The Committee concluded that existing practice too often avoids or obscures the difficult questions of what the law requires. Moreover, when the law’s requirements are accurately identified, existing practice too often fails to convey the substance of these requirements to jurors.

Consequently, the Committee set out to do two things. First, it tried to specify completely in each charge what culpable mental states the law requires for the crime at issue. Given the case law, this sometimes required speculation about what results the courts would reach.

Second, the Committee attempted to define specifically and completely those culpable mental states required. The abstract definitions of Tex. Penal Code § 6.03 are often relatively meaningless. Consequently, the Committee attempted to develop instructions that apply the applicable abstract definitions to the terms of the particular crime.

For example, the offense of injury to a child as charged in Alvarado, and as clarified on appeal should be explained to jurors in a manner considerably different than under current practice. The instructions should explain explicitly to jurors that the state must prove the accused either consciously desired to cause the injury actually caused or that the accused was aware that what he was doing was reasonably certain to cause that injury.

In addition, the Committee addressed the section 6.03 definition problem and attempted to respect the legislature’s apparent decisions reflected therein. Thus the Committee avoided construing specific crimes as including culpable mental state requirements for which section 6.03 provides no definitions.